Parental leave rules set to undergo major shift as provinces adjust to EI changes

Martha Porado | December 1, 2017

As the federal government gets ready to boost employment insurance benefits for new parents on Dec. 3, the provinces have been busy updating their parental leave policies to align with the changes.

Under the federal changes, Canadian employees with a newborn or newly adopted child will be able to choose between the existing employment insurance rate of 55 per cent of average weekly earnings across 35 weeks or 33 per cent across 61 weeks.

While employment insurance benefits are separate from laws dealing with job-protected maternity and parental leave, a change like the upcoming one on the federal level usually leads to related moves across the country, says Kelly Higgins, a senior research consultant at Aon Hewitt.

“There’s often some kind of federal policy shift that changes the Canada Labour Code, and then the provinces will roll one after the other mirroring the federal model. That’s the way these things typically happen.”

Indeed, Ontario is adjusting its parental leave policy to align with the new federal employment insurance regulations. Currently in the province, parental leave is 35 weeks, if the employee also takes pregnancy leave, and 37 weeks otherwise. As of Dec. 3, 2017, parental leave will rise to 61 weeks, if the employee takes pregnancy leave, and up to 63 weeks otherwise. The pregnancy leave of up to 17 weeks of unpaid time off work will remain unchanged.

Alberta is changing its policies, too. Currently, employers in the province don’t have to grant job-protected leave unless the employee has been with them for 52 weeks. From Jan. 1 2018, that period will decrease to 90 days. As well, Alberta’s new rules provide birth mothers with an extra week of leave so that pregnancy leave is now 16 weeks. Parental leave will remain at 37 weeks. A release from the province noted the provisions may increase in the future to align with the new country-wide employment insurance rules.

The rules in Prince Edward Island are fairly similar to Alberta. “Maternity leave is 17 weeks, parental leave is 35 weeks, and then if it’s adoption leave, it’s 52 weeks, which shouldn’t be a surprise because mat leave plus parental leave is 52 weeks,” says Constance Robinson, director of labour and industrial relations for the province.

Robinson notes that it isn’t a given that the province will align its leaves with the new federal rules. “It will be one of those things that we will be watching and seeing if there is a demand and it will be interesting to see if there is,” she says. “I don’t know how many people can afford to take the longer period of time at the reduced EI rate, so I don’t know whether many people will opt to take that longer leave or not.”

But given the new employment insurance provisions, the remaining provinces will have to fall in line, says Trevor Hughes, deputy minister of labour for British Columbia. “We need to align those provisions. It would be ridiculous for a woman to say at the end of 18 months, ‘OK, my EI’s run out, I’d like to come back to work,’ and the employer says, ‘Well, you’re out of luck because the leave protection was only 12 months.'”

Currently British Columbia provides for 37 weeks of job-protected parental leave, which falls to 35 weeks if the employee also takes the 17 weeks of maternity leave.

In Saskatchewan, employees have 18 weeks of pregnancy leave, with a further six weeks if medical issues prevent them from returning to work. Subsequently, the birth mother can receive an additional 34 weeks of parental leave, while other parents can also receive 37 weeks. In addition, the province has a separate adoption leave of 18 weeks that new parents can take in addition to the 37 weeks of parental leave.

Nova Scotia’s policy is notably different in that it gives significantly more leave than usual to the parent not bearing the child. While the birth mother can take a pregnancy leave of 17 weeks with a subsequent 35 weeks of parental leave for a combined total of 52 weeks, individuals who haven’t given birth to the child — such as an adoptive parent or the father — can also qualify for a separate 52-week parental leave of their own.

Nunavut, Manitoba, New Brunswick, the Northwest Territories and the Yukon all provide 17 weeks of pregnancy leave and 37 weeks of parental leave. Newfoundland and Labrador also provides 17 weeks of pregnancy leave, but its parental leave is 35 weeks.

Quebec is the lone province that differentiates between paternity, maternity and parental leave. Parental leave is 52 weeks, with maternity leave at 18 weeks and paternity leave at five weeks. In the case of couples where both partners are female, the partner who hasn’t given birth to the child can take paternity leave. In that case, the child must resulted from a “parental project,” with an intent for the two women to be its parents, such as artificial insemination through a sperm donor.

With the federal changes to employment insurance parental benefits taking effect, there are a a number of considerations for employers. And despite receiving plenty of notice about the incoming changes, many employers are still in the process of reviewing what to do with their own parental leave and top-up provisions, says Judy Buckley, vice-president of benefits and health at Accompass Inc.

“Keep in mind, it is a much smaller percentage of employers who offer a parental leave top-up than a maternity leave top-up. For those that do offer top-ups that go into the parental leave, it’s really about going back to what is their reason for offering that? What is their philosophy basis? And then looking at their budget.”

A lot of employers are expressing concern about the changes from a budgetary perspective, according to Buckley. “Keeping costs status quo would mean lessening the top-up if someone chooses the 18 months,” she says, adding that employers could also face the cost of replacing an employee for that 18-month period.

Employers should also be careful to word their parental leave policies in such a way that it discourages employees from taking advantage of any loopholes, says Buckley. For example, if an employer includes a top-up to 60 per cent of salary and an employee claims to have applied for the 18-month leave but has, in fact, sought the 12-month leave, the worker could theoretically get a 27 per cent top-up benefit (in light of the 60 per cent top-up level minus the 33 per cent of employment insurance benefits) from their employer while actually receiving the standard 55 per cent in employment insurance payments. And the employee could then choose to come back to work after a year instead of 18 months.

A policy should clearly disallow that possibility, says Buckley. “I would think that a well-worded policy would take away from those scenarios happening.”